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The Truth About Being a Criminal Defense Attorney

by Dylan Thomson von Brendel
June 19, 2017 | Work

What is your dream job? Chances are most people wouldn’t answer that question with “being a lawyer.”

In fact, a 2013 Pew Research Center poll shows that Americans don’t think very highly of lawyers. When asked to rate various occupations by how much they contribute to society, the 4000-plus respondents of the poll ranked lawyers last, with only 18 percent saying that they contribute to society.

Despite this negative public perception, Robert Foley and Dana Kinsella, criminal defense attorneys, got into the profession to serve the public. They formed the Minneapolis-based law firm, Kinsella and Foley Defense in November 2016 and are passionate about fighting for the rights of their clients.

Rewire:  What drew you to the law?

Foley: I think for me the law is interesting because it's kind of the boundaries and the rules and the hard lines that society has to live by in order to have an orderly, theoretically, society. But those rules can be stretched and they can be manipulated and they can be reformed, and you can really shape the way that society works and the rules that we all live and play by.

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Robert Foley (left) and Dana Kinsella. Courtesy of Kinsella and Foley Defense.

It's also the precision of those rules, and the fact that those rules and law, in general, can incorporate psychology, history, science and all these different areas of life can all be incorporated into these rules that we practice with.

Kinsella: I really wanted to get into politics when I was younger, and I thought that the best way to do it was to be a lawyer. I really do believe the law is very important. I know that it's not perfect the way that we have it here, but it's as good as there is in the world.

When you look at the way that people are dealt with in all of the other countries, it's like we have something here that does protect us. When somebody is accused of the crime they're not just automatically hand chopped off because they stole something here.

You do get your day in court, and you do have a chance, and you can get people like us who can actually defend you for these things.

Now, it doesn't always work out the way that we want it to, but in theory you would hope that it would, so it's become that more for me now.

Rewire: Why criminal defense, specifically?

Kinsella: I think the criminal defense attorney is what the majority of people think of when they think of a lawyer, when in reality we are a very niche portion of what lawyers are. Far more lawyers are the kind who are sitting there writing stuff and sitting in front of computers and never get in the courtroom.

Foley: I think for me, I've always had a soft spot for the underdog. I've been the underdog before. When someone's faced with a criminal offense the entire weight of the justice system and the state and the prosecution is coming down hard on that person. People, a lot of times, will ask me, "How can you represent these people that have committed these horrible crimes?" My response is always, "I represent the person, not their crime. I'm helping someone that needs help." A lot of times I'm helping turn that life around.

The Constitution guarantees somebody has their day in court, and I think that's one of the things that makes us unique. One of the ways that I think about this is I care a lot about my clients as individuals, but just as much as that my client is also The Constitution of The United States.

Kinsella: We're never going to get them off unless the cops made a mistake. And if they made a mistake then it's good that we're getting them off. The Constitution's not doing its job if they're making mistakes and they're still getting convictions for these kind of things.

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Foley: I think we're an important part of the checks and balance system that makes things work, because if you look at the authority and the power that law enforcement has, if there wasn't some mechanism in place to check that power, to double-check their work, to make sure that they're following their own rules, just think about what we all be at risk of. And so I may defend this person or that person for a specific crime, but what I'm actually doing is protecting everyone's rights.

Kinsella: We say it a lot in our line of work, "Good people make mistakes." So many of these things, people think criminal defense attorney, "Oh, they're getting murderers off." I can tell you right now, I've never defended a murderer in my life. I haven't had the opportunity to, but I haven't. The most common things that people are seeing, they're everyday people. We've defended celebrities. We've defended doctors. We've defended other lawyers. We've defended every kind of swath of our society.

When it comes down to it a lot of these people are good people that made one mistake, had too many drinks or had a bad day and reacted wrong for something. It's like, "Now, should that one mistake this good person made be what dictates the rest of their life?" I don't think so. I think anybody who has had that kind of thing happen to them is happy to have a second chance, and we can hopefully provide somewhat of that for them.

Foley: And even if the person [is] a murderer or somebody that's committed a horrible crime, they're still entitled to a defense, and you need to have somebody in place to double-check the police work and make sure that the state can meet their burden to get their conviction. Like Dana said, if they can meet that burden, then they've earned that conviction. But if law enforcement makes mistakes or even goes as far as planting evidence or lying or being dishonest, they're entitled to a defense against that type of thing even if they're not a good person. Even if they have a long record or have committed a horrible act, they deserve a defense.

Rewire: How does it feel when someone comes at you with that attitude that what you're doing is bad and you are helping bad people? How does that make you feel?

Kinsella: It's a really common thing that I see. Every single social gathering that I go to where I get introduced. It's amazing how quickly somebody hears, "Oh, you're a defense attorney?" It becomes the conversation. Inevitably somebody's going to say at some point, "How do you sleep at night?" The fact of the matter is that it feels, I guess to answer your question directly, it doesn't feel very good. They look at you like you're a criminal for helping other people out. That doesn't feel good.

My short answer all the time is, "I sleep very well," because once again, as he says, I'm defending the Constitution.

Overall, the people that I work with, they're not the crime, they're the person. I work with a lot of really good people, and, actually, I form a relationship with most of them, and down the road I get to hear from them and get to see them turn around. They call me years down the road and they say, "Thank you for giving me the opportunity to turn this around." That's not in every case, but it does happen from time to time, and that makes it worth [it].

Foley: It's actually pretty rare that a criminal case goes all the way to a jury trial. Most of the time that case is resolved short of trial with some kind of a plea bargain or a resolution or something. A lot of what we do is negotiating and helping our clients to just realy minimize the damage, get them back to their lives, try and get them moving forward with their life. Do cases go to trial? Sure, they absolutely do. But the vast majority of the time what we do is not what people think we do.

Rewire:  What would you say is the worst part of what you have to do in your job?

Foley: I think it's the mental illness that's pretty prevalent among our clients. I think that the majority of our clients, there's a link between the crime that they're charged with and some type of substance abuse, whether it's drugs or alcohol or whatever it may be. That is, oftentimes, a symptom of some form of mental illness, whether it's depression or anxiety, bi-polar, sometimes even schizophrenia.

When you take on a client and you form that relationship you're taking on that whole person and all their issues and mental illnesses and substance abuse issues that they have, so that's always a little challenging. Also, setting expectations can be tricky, too. We always like to be straight-up and honest with our clients. If we review the evidence and there doesn't seem to be much there we need to set that expectation that we're going to do the best we can for you and we're going to minimize the damage, but you're not getting out of this scot-free. That can be a little bit tricky, too.

Kinsella: The worst part is getting people who are four or five-time offenders. Not because I'm mad that they're back again, but just seeing that, "Okay, we didn't help them enough the first time."

Rewire: Talk a little bit about forming your firm. Why did you do that? 

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Foley: I wanted to have more of a role in my future, and I wanted to be more responsible for my own income and my own success. When you work at a firm you can be successful and doing well and everything is going great, but there's a ceiling on what you can really do. When you branch out and start your own or partner-up with somebody the sky's the limit. That comes with other considerations, like the buck stops with me and Dana. It has its pros and its cons, but for me, the biggest thing was I just wanted to be able to control my financial future and presence and everything else.

Kinsella: Yeah. We're only at about seven months right now, but we're exceeding all expectations at this point. It's been nothing but an awesome experience so far, and I can't imagine it going any different at this point.

Rewire: If you could give yourself advice when you were first starting or before you went into law school about whether or not to go into it or what you need to know before you go into it, what advice would that be? 

Kinsella: We do have people who will come to us and say, "Hey, I want to go to law school." The biggest thing that I always tell everybody is, the first question is, "Do you really want to be a lawyer? Is that something that you want to do is be a lawyer?" because if you want to be a lawyer, go to law school.

But if you think that you're going to go to law school, you're going to become a lawyer and you're going to be this millionaire and everything, don't, because you're just going to get student loans. That's what's going to happen.

I love being a lawyer. I can't imagine being anything else, to tell you the truth. You work with people. You do get to help people. Even though some people think it's not what we're doing, we are, we're helping people. If that's what you want to do, do it. It's going to be hard, but it's going to be worth it in the end if that's what you want to do.

Foley: Don't borrow so much money. Maybe put some away or work more and don't borrow so much because those student loans are—god—even when you're doing well, they're a lot.

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The other thing is I wish that I would have put in some more work before I went to law school just to kind of teach myself the basics of law. A lot of people in law school, their parents are lawyers or their siblings and they come from lawyer families or whatever. I didn't have the background to know when it picked up, and they were using terms that seemed to be common knowledge that I didn't know what they meant. And so I wish I would have taught myself a little bit more about the law before I went to law school. I think it would have sunk in better.

Kinsella: I worked for the public defender's office while I was in law school. After my first year of law school, I hadn't even had too many classes yet at this point. One year out of the three done, they literally gave me my own courtroom the first day, threw a stack of files in front of me like this. I learned more on that day than I did in the whole year of law school.

Foley: Another thing that law school doesn't prepare you for is the business side of it. Even if you work for a big firm and you're not doing any of your own marketing and business and accounting and that kind of stuff, you kind of have this idea in law school that, "I'm going to come out of law school. I'm going to have my JD. I'm going to be a lawyer, and I'm going to practice law, and I'm going to make a bunch of money."

Like anything else it's a business, but when you're in law school you have these grandiose visions of being this lawyer and everything is going to be great. It's like anything else, it's highly-competitive and you have to pound the pavement, at least for what we do. It's not what you think it is in law school.

Kinsella: But it's worth it.

Foley: Yeah, absolutely. I wouldn't do it any other way, and everything I just talked about I also love, I just didn't realize it.


Dylan Thomson von Brendel
Dylan Thomson von Brendelstudied theater, video production, and film producing over the last 15 years and has worked in many different arenas along the way. He’s a sucker for Austin City Limits and would watch Antiques Roadshow every night if PBS would program it that way. Connect with Dylan on Twitter @DManMegaMix.
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